Opinion
Civil Action No. 05-12189-RWZ.
July 10, 2006
MEMORANDUM OF DECISION
The United States filed this action against defendant American Premier Underwriters, Inc. ("APU") seeking recovery of costs incurred with the clean-up of the Morses Pond Culvert Site in Wellesley, Massachusetts, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1990 ("CERCLA"), 42 U.S.C. §§ 9607(a) and 9613(g)(2). Defendant moves to dismiss or, in the alternative, to transfer the action to the United States District Court for the Eastern District of Pennsylvania ("Reorganization Court"). Defendant first seeks dismissal or transfer based upon the Consummation Order and Final Decree ("Consummation Order") issued by the Reorganization Court in connection with the bankruptcy proceedings of the Penn Central Transportation Company ("PCTC"). In that order, the Reorganization Court retained exclusive jurisdiction to determine whether claims against PCTC, or its reorganized entity, APU, were discharged or otherwise barred by the Consummation Order. (Consummation Order, § 7.04). In support of its position, defendant cites several cases in which courts have concluded that the Reorganization Court possesses exclusive jurisdiction over the question of whether claims against APU were discharged in the Consummation Order. See, e.g., Providence Worcester R.R. Co. v. Penn Cent. Corp., No. 88-2119, 1989 U.S. Dist. LEXIS 7259, at *8 (D. Mass. June 28, 1989) (dismissing claims); New Jersey Transit Corp. v. Am. Premier Underwriters, Inc., Opinion and Order, at 23-25, No. 04-6423 (D.N.J. Nov. 23, 2005) (transferring case to Reorganization Court based upon same Consummation Order);cf. Mesiti v. Microdot, Inc., 156 B.R. 113, 118-19 (D.N.H. 1993) (transferring to Reorganization Court based upon analogous Consummation Order). The government argues that this court has concurrent jurisdiction of discharge questions, but conceded at oral argument that the case law favors plaintiff's position.
Accordingly, defendant's motion (#3 on the docket) is denied without prejudice insofar as it seeks dismissal, and allowed insofar as it seeks transfer to the United States District Court for the District of Pennsylvania. The government's motion to file a reply brief (#15) is allowed. Consideration of its motion for summary judgment is left to the Reorganization Court.